Bartnicki v. Vopper
532 U.S. 514 (2001)
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Rule of Law:
The First Amendment protects the publication of truthful information of public concern that has been lawfully obtained, even if the original source of the information acquired it illegally, provided the publisher did not participate in the illegal interception.
Facts:
- During contentious collective-bargaining negotiations in 1993, Gloria Bartnicki, the union's chief negotiator, and Anthony Kane, the union president, had a private cellular phone conversation.
- In the conversation, Kane suggested a dramatic response to the school board's intransigence, stating, 'If they're not gonna move for three percent, we're gonna have to go to their... homes.... To blow off their front porches.'
- An unknown person illegally intercepted and recorded this phone conversation.
- Jack Yocum, the head of a local taxpayers' organization opposed to the union's demands, found a tape of the recording in his mailbox.
- Yocum recognized the voices and gave the tape to some school board members and later to Frederick Vopper, a radio commentator.
- Vopper played a portion of the tape on his public affairs talk show, and other local media outlets also published the conversation's contents.
Procedural Posture:
- Gloria Bartnicki and Anthony Kane sued Frederick Vopper, Jack Yocum, and other media outlets in the U.S. District Court for the Middle District of Pennsylvania.
- The complaint alleged that the defendants violated the federal Wiretap Act and a similar Pennsylvania statute by publishing the illegally intercepted phone call.
- The parties filed cross-motions for summary judgment, with the defendants arguing their disclosures were protected by the First Amendment.
- The District Court rejected the defendants' First Amendment defense and denied their motion for summary judgment.
- The District Court certified the First Amendment question for an interlocutory appeal to the U.S. Court of Appeals for the Third Circuit.
- A three-judge panel of the Third Circuit reversed the District Court, holding that the wiretapping statutes were unconstitutional as applied to the defendants.
- The U.S. Supreme Court granted certiorari to resolve a conflict among the Circuit courts.
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Issue:
Does the First Amendment protect the disclosure of an illegally intercepted communication by a party who did not participate in the illegal interception, when the communication involves a matter of public concern?
Opinions:
Majority - Justice Stevens
Yes. The First Amendment protects the disclosure because a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern. The Court reasoned that the federal and state wiretapping statutes at issue were content-neutral but nonetheless were a regulation of pure speech. Applying a principle from cases like Smith v. Daily Mail, the Court held that punishing the publication of truthful information lawfully obtained by the publisher, even if unlawfully intercepted by the original source, requires a state interest 'of the highest order.' The government's asserted interests—deterring illegal interceptions and protecting privacy—were not sufficient to justify punishing a third party who played no role in the illegal act, especially when the speech involved a matter of public concern. Punishing the publisher is not a narrowly tailored means to deter the original interceptor, and privacy interests must give way when balanced against the profound national commitment to debate on public issues.
Dissenting - Chief Justice Rehnquist
No. The wiretapping statutes do not violate the First Amendment because they are content-neutral laws that should be subject to intermediate scrutiny, not the strict scrutiny the majority implicitly applies. The dissent argued that these laws are essential to protect the privacy of millions of Americans and to foster uninhibited private speech. The government's interest in deterring illegal interceptions is substantial, and the prohibition on disclosure serves a 'dry-up-the-market' function, removing the incentive for eavesdroppers to intercept communications in the first place. The majority unwisely substitutes its own judgment for that of Congress and 40 state legislatures by dismissing this reasonable legislative rationale without sufficient basis. The Court's decision chills the private speech of ordinary citizens in favor of protecting the publication of illegally obtained information.
Concurring - Justice Breyer
Yes. The statutes as applied in this specific case are unconstitutional, but the Court's holding should be narrow. This opinion advocates for a balancing test rather than strict scrutiny where competing constitutional interests—free speech and privacy—are at stake. The statutes disproportionately interfere with media freedom in this case for three key reasons: (1) the broadcasters acted lawfully and did not participate in the illegal interception; (2) the conversation involved a matter of unusual public concern, namely a threat of potential physical harm; and (3) the speakers were limited public figures with a lesser expectation of privacy regarding this public controversy. The holding should not be read to create a broad 'public interest' exception that would swallow the statutes' general privacy protections, especially as technology poses new threats.
Analysis:
This case establishes a significant First Amendment protection for the press and other third parties who publish or broadcast illegally obtained information, provided they themselves obtained it lawfully. The ruling creates a high constitutional bar against punishing the downstream publication of newsworthy information, even if the information was originally sourced through a criminal act. This principle strengthens the media's ability to report on leaks and inside information without fear of liability for the illegal acts of their sources. However, the decision leaves open the question of whether the same protection would apply to the publication of information of a purely private nature, rather than a matter of public concern.
